Will copyright be extended 20 more years? An old debate returns

Steamboat Willie

Congress is conducting a review of America’s copyright laws, a process that could shape culture and creativity for a generation or more. While the process has so far focused on how to stop piracy, some are asking if Hollywood will try to extend copyright terms once again in order to prevent works like Mickey Mouse from falling into the public domain.

The question came up on the Volokh Conspiracy, a blog popular with legal types, where a law prof proposed starting a pool on whether Congress would extend copyright terms by another 20 years.

While the larger debate has been relatively quiet so far, it could flare up again as it did in the late 1990s when the last 20-year extension led to a bitter legal fight between scholars and librarians on one hand, and Hollywood and the music industry on the other. The entertainment industry ultimately prevailed at the U.S. Supreme Court, which ruled 7-2 that copyright laws stretching more than a century were not unconstitutional.

This time around, it’s unclear whether Disney and others will push for another law similar to the 1998 one that critics derided as “The Mickey Mouse Protection Act.” But the same issue — the impending arrival of Mickey’s Steamboat Willie movie into the public domain — still remains, leading cynics to predict that Hollywood will lobby for another extension.

“Copyright will be extended indefinitely, at least in the U.S., so long as there is large corporate money involved,” wrote one commenter on the Volokh blog. Skeptics have also pointed to the Supreme Court’s recent decision to let Congress remove works like “Peter and the Wolf” from the public domain as evidence that copyright has no limits.

Others aren’t so sure. That’s because, in the current copyright debate, the ground has shifted from where it was in 1998. Specifically:

  • Tech companies like Google, which are typically in favor of an expanded public domain, have increased their lobbying clout in Washington
  • The moral and economic case for longer copyright terms is being undercut by evidence that longer terms do not lead to more book sales — but instead, as this Atlantic piece shows, causes books to simply become unavailable.
  • The growth of institutions like the Internet Archive, Google Books and the Digital Public Library of America has led to a new public awareness of the importance of public domain works
  • Conservatives — who historically have supported any copyright expansion in the name of property rights — are becoming more skeptical of expansive intellectual property rights as a form of market distortion and a sop to the Democratic Party’s supporters in the entertainment industry

So what will happen? It’s too soon to say. Disney and others may fight tooth-and-nail to keep properties like Mickey Mouse under copyright (note that such characters will be covered, in any event, by trademark laws), but they may also decide to keep their powder dry in order to advocate instead for tougher enforcement of existing copyright. So far, that this is the tack they appear to be taking; most of the discussion before Congress has centered on piracy and sites that profit from unauthorized file-sharing.

My own take is that a sensible copyright policy could arise if, on one hand, corporate copyright holders agreed to shorten copyright terms while, on the other, piracy apologists agreed that some measures of enforcement are justified.

Finally, here’s a site that shows the works — including Lady & the Tramp and Why Johnny Can’t Read — that would be in the public domain were it not for repeated copyright extensions. Here’s what actually came into public domain in 2013.

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